Filed 6/30/20 Barot v. City of Berkeley CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

NIMISHA H. BAROT,

Plaintiff and Appellant,

v.

CITY OF BERKELEY,

Defendant and Respondent.

A159005

(Alameda County

Super. Ct. No. RG19002717)

Nimisha H. Barot appeals a judgment of dismissal entered after the trial court sustained without leave to amend the City of Berkeley’s (the city) demurrer to her second amended complaint. The amended complaint was Barot’s third attempt to state causes of action for inverse condemnation and negligence based on the suspension of a building permit authorizing her to modify her garage. The city suspended the permit after it belatedly determined that the project also requires a use permit. Rather than apply for such a permit, Barot filed this action, claiming that the delay of her project effects a taking of her property and arises from the city’s negligence in applying its zoning laws. However, Barot’s failure to exhaust administrative remedies bars her cause of action for inverse condemnation, and the city has immunity for its alleged negligence. We shall therefore affirm.

Factual and Procedural History

The amended complaint alleges as follows: Barot owns a lot in the city with a house and garage. In April 2017, she secured a building permit to improve the garage. Work on the improvements proceeded for some months, during which time the city inspected the work several times, approving it or directing revisions with which she complied.

In December 2017, a city employee asked Barot to submit “a separate demolition application,” advising her that once it was approved, “a demolition permit could be issued.” In March 2018, the city approved her “application for a permit to demolish exterior walls (along with corresponding plans).” However, she alleges that neighbors physically prevented her from proceeding with the demolition.

In April 2018 the city issued “Revision #06” to the building permit. In order “to stay further from the property line with the neighbors who had . . . prevented demolition,” Revision #06 removed additional footing that had been added to the planned work by “Revision #05.” A month later, the city issued a notice of violation which stated: “Building Permit B2016-03825 is hereby temporarily suspended until . . . an Administrative Use Permit has been applied for and approved by [the] Land Use Planning Department, or revisions are made to bring the project into conformance with the Zoning Ordinance. [Revision #05] was approved in error. [Barot]’s representation on the original permit was that the garage walls would be retained as a nonconforming structure that was being converted. That is no longer the case, due to the removal of more than 50% of the existing walls and roof, including the exterior wall at the adjacent property line, under Building Permit B2018-00272. This constitutes a demolition under Berkeley Municipal Code (BMC) Section 23F.04.010 and requires an Administrative Use Permit (AUP) in order to construct an Accessory Dwelling Unit (ADU). No further construction shall be performed unless and until the AUP has been approved, or the plans are revised to conform to zoning requirements set forth in the ADU section of the Zoning Ordinance, BMC Chapter 230.10.”

Barot did not apply for a use permit. The city’s “errors and omissions” allegedly left her “unable to complete construction as planned and approved by [the city] over a period of more than one year.” In September 2018, she presented to the city a government claim for monetary compensation, which the city denied.

In January 2019, Barot filed a complaint asserting causes of action for inverse condemnation and for negligence, to which the city demurred. The city contended, among other things, that the inverse condemnation claim failed because Barot did not allege that she had exhausted administrative remedies by applying for a use permit. The negligence claim, the city argued, was barred by the Government Claims Act (Gov. Code, § 810 et seq. ), which confers immunity from damage claims based on the issuance, denial, suspension, or revocation of a permit (Gov. Code, § 818.4).

The court sustained the demurrer with leave to amend, and Barot filed an amended complaint, to which the city again filed a demurrer, which the court again sustained with leave to amend. Barot then filed the second amended complaint, the pleading before us. The amended complaint added allegations that the filing of a government claim constituted substantial compliance with the duty to exhaust administrative remedies, that further pursuit of such remedies would have been futile, and that the city’s “duty of care” to process permit applications in accord with applicable law is “mandatory in nature.”

The city again demurred, and the court sustained the demurrer without leave to amend. After the court entered a judgment of dismissal, Barot timely appealed.

Discussion

We review an order sustaining a demurrer de novo, exercising “ ‘ “our independent judgment about whether the complaint states a cause of action as a matter of law.” ’ ” (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.) “ ‘ “ ‘We treat the demurrer as admitting all material facts properly ple[d], but not contentions, deductions or conclusions of fact or law,’ ” ’ ” and we reverse “ ‘if the plaintiff has stated a cause of action under any possible legal theory.’ ” (Ibid.) If the demurrer is sustained without leave to amend, we determine whether there is a reasonable possibility that the plaintiff could cure the defect with an amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

1. Inverse Condemnation Cause of Action
2.
In Hensler v. City of Glendale (1994) 8 Cal.4th 1 (Hensler), our Supreme Court set forth the prerequisites for a cause of action based on a regulatory taking. If a public entity “merely regulates the use of property” without physically occupying it, as in this case, “[a]n individualized assessment of the impact of the regulation on a particular parcel of property and its relation to a legitimate state interest is necessary in determining whether a regulatory restriction on property use constitutes a compensable taking.” (Id. at p. 10.) Accordingly, “until a final administrative decision has been made, one which affords the [public entity] the opportunity to amend the agency decision and/or grant a variance, whether a taking has occurred through application of a land-use regulation to specific property cannot be determined.” (Id. at pp. 10–11, italics added.)

“[T]he impact of a law or regulation as applied to a specific piece of property determines whether there has been a compensable taking. Compensation need not be paid unless the ordinance or regulation fails to serve an important governmental purpose or ‘goes too far’ as applied to the specific property . . . . [Citation.] The impact of a law or regulation on the owner’s right to use or develop the property cannot be assessed until an administrative agency applies the ordinance or regulation to the property and a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt the property from the challenged restriction. A final administrative decision includes exhaustion of any available review mechanism. Utilization of available avenues of administrative relief is necessary because the court ‘cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes.’ ” (Hensler, supra, 8 Cal.4th at p. 10, italics added.)

Here, the city issued a notice suspending Barot’s building permit “until” a use permit “has been applied for and approved . . . or revisions are made to bring the project into conformance with the Zoning Ordinance.” The notice thus identified an “available avenue[] of administrative relief” from the restriction imposed on Barot’s use of her property. Because she failed to apply for a use permit, she did not pursue all “available avenues of administrative relief” and may not pursue a claim for inverse condemnation. (Hensler, supra, 8 Cal.4th at p. 12.)

Barot never addresses the Hensler prerequisites. On appeal, her main contention is that she exhausted administrative remedies by filing a claim for damages under section 905. But the filing of such a claim is not among the “available avenues of administrative relief” from the application of a land-use regulation to a property. (Hensler, supra, 8 Cal.4th at p. 12.) Indeed, the Government Claims Act specifies that “[n]o claim is required to be filed to maintain an action against a public entity for taking of . . . private property pursuant to . . . the California Constitution.” (§ 905.1.) The central point of Hensler is that it is not possible to determine whether the application of a land-use regulation to a specific property has given rise to a compensable taking until “a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt the property from the challenged restriction.” (Hensler, supra, at p. 12.) Barot’s government claim could at most have yielded an award of monetary compensation, not a final administrative decision about the availability of ways to exempt her property from the restriction. Without a final administrative decision on that issue, the court cannot assess whether there has been an inverse condemnation. The trial court thus properly sustained the demurrer to that cause of action.

3. Negligence Cause of Action
4.
The trial court was also correct in sustaining the city’s demurrer to the negligence cause of action.

In holding that “the Government Claims Act immunizes [the city] against common law causes of action like negligence,” the trial court cited Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, superseded by statute on another point as stated in Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 358. That case holds: “The Government Claims Act . . . establishes the limits of common law liability for public entities, stating: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ (§ 815, subd. (a), italics added.) The Legislative Committee Comment to section 815 states: ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation . . . .’ ” (Id. at p. 899.)

“Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified” in a complaint against a public entity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Here, the trial court sustained the city’s demurrer to Barot’s first amended complaint with leave to amend because she had not cited a statute authorizing her negligence cause of action. No such statute is cited in the second amended complaint nor on appeal. The court rightly sustained the demurrer without leave to amend.

The negligence cause of action is also barred by section 818.4, which states that a public entity “is not liable for an injury caused by the issuance, denial, suspension or revocation of . . . any permit . . . where the public entity or an employee [thereof] is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” (§ 818.4.) Barot does not dispute that the city is authorized by enactment to issue and suspend building permits.

Barot contends instead that section 818.4 immunity “applies only to discretionary activities”; that the dispute here concerns whether her project entailed a “demolition” under the city’s municipal code; and that whether the project entailed a demolition “is a legal question,” the resolution of which “does not involve a discretionary decision made by a city employee.” Neither of the two cases she cites support this conclusion. Each upheld a finding of immunity while distinguishing authority holding that section 818.4 immunity does not apply if a specific provision of law imposes a ministerial duty to issue or deny a permit based on a specified fact. (Kay v. City of Rancho Palos Verdes (2007) 504 F.3d 803, 810, distinguishing Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49; Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 318, distinguishing Morris v. County of Marin (1977) 18 Cal.3d 901, limited by Caldwell v. Montoya (1995) 10 Cal.4th 972, 988, fn. 8.) Barot cites no law or ordinance that imposed on city employees a ministerial duty applicable here. Even if a city employee did err in applying the municipal code’s definition of “demolition” to her project, this would constitute only an error in exercising the authority to suspend building permits, not a refusal to perform a ministerial duty or the performance of an act specifically barred by law.

5. Denial of leave to amend.
6.
Barot was given two opportunities to correct the deficiencies the court addressed in sustaining the city’s demurrer to her original complaint. Neither below nor in this court has she suggested any allegations she might make to overcome those deficiencies. The trial court did not abuse its discretion in denying leave to amend again.

Disposition

The judgment is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

TUCHER, J.